Unreasonable Verdict

R. v. McCracken, 2016 ONCA 228:

[23]       The question for an appellate court assessing an unreasonable verdict argument is whether, on the whole of the evidence, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36; R. v. Yebes, [1987] 2 S.C.R. 168, at p. 186. The reviewing court is required to “review, analyse and, within the limits of appellate disadvantage, weigh the evidence”: Biniaris, at para. 36.

[24]       The issue is not whether the reviewing court would have convicted the appellant, but whether the evidence, viewed through the lens of judicial experience, was reasonably capable of supporting a finding of guilt. The reviewing court must ask itself “whether the jury’s verdict is supportable on any reasonable view of the evidence and whether proper judicial fact-finding applied to the evidence precludes the conclusion reached by the jury” (emphasis in original): R. v. W.H., 2013 SCC 22, [2013] 2 S.C.R. 180, at paras. 2, 26-28.

[25]       Even at the best of times, identification evidence is subject to well-known and inherent frailties: R. v. Olliffe, 2015 ONCA 242, 322 C.C.C. (3d) 501, at paras. 36-40; R. v. Goran, 2008 ONCA 195, 234 O.A.C. 283, at paras. 19-20 and 31-33. Honest and convincing, but mistaken, eyewitness identification, has been the source of wrongful convictions because it appears deceptively reliable. Particular vigilance is therefore required in relation to this type of evidence. Although familiarity may enhance the reliability of evidence, the same cautions and concerns apply to recognition evidence: R. v. Benson, 2015 ONCA 827, [2015] O.J. No. 6348, at para. 25.